Who can contest a will?
Can I challenge my parent’s will? Can someone else challenge my will? Whether a will can be challenged depends on the party, state law, and whether sufficient grounds exist for the challenge.
Disclaimer: I am an attorney, but I am not your attorney. Nothing in this site creates an attorney-client relationship. This article is for educational purposes only and should not be used as legal advice. Always consult with your own attorney as your own personal circumstances dictate the legal advice that is right for you.
Can I Contest A Will?
A successful will challenge depends on a few key factors. If anyone wants to sue to challenge a will, then he or she needs to know the answer to a few basic questions:
- Is he or she an interested party? (Standing)
- Does the state law that governs the will uphold or ignore in terrorem clauses (no contest clauses)?
- Does the will contain an in terrorem/no contest clause?
- Does the challenge state sufficient grounds for the challenge? (Merit)
If you are an interested party, live in a state that does not honor in terrorem clauses or have a will that does not contain a no contest clause, then you can challenge the will with sufficient grounds. Let’s look at all of these questions more closely.
Reasons to Challenge a Will
As an estate planning attorney, I have seen many reasons to challenge a person’s last will and testament. Sometimes siblings accuse other siblings of poisoning a parent against another sibling.
Other times, a child might be born out of wedlock and want to receive a portion of the biological parent’s estate. At still other times, a parent may base his or her decision to include or exclude a child based on false or misleading information or legal advice.
While will contests are often a great source of entertainment in period dramas, in reality challenging a will is a complicated undertaking, and several criteria have to be met first.
First, before challenging any will, the challenger has to be a qualified person to contest the will.
Who Can Challenge a Will?
Will challenges can only be started by interested parties. Some interested parties include named beneficiaries, legal or biological children, spouses, and any person who was mentioned in a prior will.
Among other people, challengers generally include people who have some sort of expectation that they will inherit.
The people who have the right to challenge a will (standing) are called interested parties.
Standing to Challenge a Will
Even people specifically excluded from a will might be interested parties who have a right to challenge a will.
Most of the time interested parties who also have standing to challenge a will are children, spouses, or other heirs. However, in many states, people who were included in a prior will also have the right to challenge a will.
In other words, if you included the ASPCA in a prior will and later revoked that will, formed a new will because you believed the ASPCA was disbanded, then gave the entirety of your estate to the FFA, then the ASPCA might have standing as an interested party to challenge the will! (Maybe!)
The more frequent situation occurs when in a prior will dad leaves his three children assets in equal 1/3 shares. Then, later, because one of his children convinced him that a different child had become independently wealthy and no longer loves him, dad changes his will to split his total estate between the 2 remaining children.
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The third child who was swindled out of his share is an interested party who has the right to bring a challenge based on undue influence.
However, just because you are an interested party with standing does not make you immune from the no contest or in terrorem clause.
What is a No Contest (In Terrerom) Clause?
A no contest clause (also known as an in terrorem clause) in a will is a section of the will that states that anyone who challenges the will loses his inheritance entirely.
You don’t want to challenge a will simply because you feel like you got a smaller share than you deserved. If that no contest clause governs, then you would lose your share entirely if you challenge the will.
For this reason, some people leave someone a nominal amount with the threat that any suit against the will results in a total loss.
A no contest clause might look something like:
If any beneficiary hereunder shall challenge the validity of my will, then his or her gift shall lapse.
Interestingly, no contest clauses are not always enforceable.
Is the No Contest Clause Enforceable?
Each state is different as to whether it enforces or ignores no contest clauses. The state of Indiana only began to enforce no contest clauses in 2018. Tennessee has long-honored no contest clauses as a deterrent to challenges.
Prior to enforcing them in Indiana, many people still included no contest clauses as a deterrent to their heirs, children, or other beneficiaries, but they were not truly enforceable.
Therefore, even if the will you want to challenge has a no contest clause, the clause might not be enforceable in your state!
Wills Can Only Be Challenged On Grounds: MERIT
Last, but certainly not least, no will contest will survive if there are not sufficient grounds for a challenge.
As mentioned already, some of those grounds might include undue influence, capacity, fraud, improper execution, illegality, or other reasons.
No challenge will survive if the claim is not meritorious.
Simply feeling left out or wanting more isn’t good enough. A probate court presumes that wills that look good are good until someone challenges it. The challenger bears the burden to allege some sort of technical, legal, or other deficiency.
“It’s not fair” is not a ground for a successful challenge to the will. However, “he didn’t sign it,” “he was in a coma,” or other reasons are!
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Can I Challenge a Will?
Knowing whether or not you can challenge a will or whether someone else can challenge yours depends on:
- Standing or relationship to the testator or will,
- Whether the will has an in terrorem/no contest clause,
- Whether your state honors in terrorem/no contest clauses, and
- Whether your challenge has grounds.
For the most part, a well-rounded estate plan is difficult to challenge. A good attorney will discuss your family dynamics, reasons behind your decisions, and even the types of property you own.
That way, he or she can identify potential challenges to your estate plan prior to the issue arising. In fact, he or she may include recitations that explain your wishes, changes, or bases for including or not including certain people.
Further, a good estate planning attorney will take sufficient steps to alleviate doubt as to competency. Plus, he or she will make sure that your documents are properly executed.
No estate plan is completely invulnerable from attack, but your estate planner can identify who has standing, what your state law is, and whether there are any grounds for attack. As always, meet with a reputable estate planning attorney in your jurisdiction to complete your estate plan!